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A2610 > Ch.17 Corporation Law > Flashcards

Ch.17 Corporation Law Flashcards

1
Q

Corporation

A

type of legal entity created by the state

  • Existence in law is separate from those who form it, possess shares in it or who are responsible for direction (limited ability)
  • Principal use is vehicle by which large amounts of capital may be accumulated
  • A person in the eyes of the law with similar rights and responsibilities to that of an individual
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2
Q

Corporate is neither an individual nor a partnership:

A

Separate legal entity from its owners

Existence at law, but not material existence

Artificially created

Rights and duties delineated by law

Existence can be terminated by state

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3
Q

Important characteristics of corporation:

A

Corporation is separate and distinct from its shareholders, and acts not through theme but through authorized agents

Properly authorized agent may blind corporation in contract with third parties

Shareholders possess limited liability for debts of corporation, and creditors may look only to assets of corporation to satisfy their claims

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4
Q

Shareholder

A

person who holds a share interest in a corporation; a part owner

Shareholders elect directors and directors appoint officers

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5
Q

Director

A

under corporation law, a person elected by the shareholders to manage its affairs

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6
Q

Officer

A

person elected or appointed by the directors to fill a particular office (president, secretary, etc.)

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7
Q

Control In corporations:

A

Management delegated by shareholders to elected group of directors

Directors make all decisions for corporation

Subject to limitations in the Articles of Incorporation or shareholders agreement

Shareholders cannot bind the corporation in contract (only officers and directors)

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8
Q

Limited Liability

Shareholders’ losses limited to investment in corporation

A

Personal assets not subject to creditors

In event of loss, only assets available to creditors are those of the corporation

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9
Q

Transfer of Interests

A

Freedom of shareholders to transfer shares
- Freely in a public or private company
- Subject to restrictions in Articles of Incorporation or shareholders agreement

Identity of shareholder as well as shareholder’s wealth are unimportant
- Once corporation issues and receives payment for shares, no further contribution can be demanded from shareholder

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10
Q

Corporation has unlimited term of operation:

A

Perpetual existence

Continues even if shareholders die

May be dissolved by state or be voluntarily closed but not dependent on life or death of shareholder

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11
Q

Corporation free to accumulate large amounts of capital by:

A

Issuing shares or by issue of bonds and debentures

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12
Q

Corporation governed by statute under which it is incorporated:

A

Sets out conditions and rules of its operation

Rights and duties of shareholders and directors are statutory (not contractual)

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13
Q

Corporate Name

A

Corporation’s name is an asset of the business

  • Must not be the same as another corporation
  • Last word identifies it as a corporation
    – Examples: Limited or Ltd., Incorporated or Inc., etc.
    – Distinguishes corporation from partnership
  • Cannot denote connection with the Crown
  • Cannot be obscene, too general, or cause confusion with existing names
  • Must be clearly indicated on letterhead, business, forms, etc.
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14
Q

Special-Act

A

corporation created by an Act of Parliament or legislature for a specific purpose

  • Corporation has only powers specifically granted to it by the statute
  • Incorporation for special purposes
    – For publish or quasi-public purposes
    – Examples:
    Construction of public utility, Crown corporations like Canada Post
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15
Q

Ultra vires

A

if corporation attempts to perform something outside its powers

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16
Q

General Act

A

form of incorporation whereby a corporation may be created by filing specific information required by statute

  • Incorporation in all provinces requires specific disclosures and recitals in incorporation documents (depending on province):
    – Memorandum of Association OR
    – Articles of Incorporation
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17
Q

Doctrine of constructive notice

A

presumption at law that everyone has knowledge of the content of all statutes

  • Doctrine of Ultra Vires and constructive notice
  • Protect third parties from unusual limitations on powers of directors or on corporation itself
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18
Q

Indoor management rule

A

party dealing with a corporation may assume that officers have the valid and express authority to bind corporation

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19
Q

The Incorporation Process

A

Process begins with preparation of application for incorporation:

  1. Name of proposed corporation
  2. Address of head office and place of business
  3. Names of applicants (incorporators)
  4. Address of the head office and place of business
  5. Names of applicants (incorporators)
  6. Object of corporation
  7. Share capital (restrictions)
  8. Any restrictions or rights attached to shares
  9. Any special powers or restrictions to business
20
Q

Shareholders’ agreement

A

agreement between shareholders of a private corporation concerning management and/or future reorganization of the corporation such as a buy-out of interests

  • Protects minority shareholders
  • Sets “ground rules” between investors
  • Often created by shareholders to guarantee long-term employment in return for accepting status of minority shareholder
21
Q

Three types of shareholder agreements:

A
  1. Shareholder and corporation
  2. Shareholder and the other shareholders
  3. Shareholders who act as directors
22
Q

Issues arising in shareholders’ agreements:

A

Minimums of the Act must be abided by various matters, including restrictions on powers of directors, appointment and remuneration of officers, plan and budgets, etc. (see textbook)

23
Q

Shares

A

ownership of a fractional equity interest in a corporation

  • Used to raise capital for corporation
  • Can be fixed value or par-value
  • Common or preferred
  • All corporations must have some voting common shares
24
Q

Debentures (Bond)

A

debt security issues by a corporation that may or may not have specific assets of the corporation pledged as security for payment

25
Q

Priority rights should corporation default on its debts are determined by Bankruptcy Act and Personal Property Security Acts

A

Priority rights should corporation default on its debts are determined by Bankruptcy Act and Personal Property Security Acts

26
Q

The Taxation of Corporations

A

Separate entity at law and is subject to taxation on its
business activities

Shareholders may be taxed on dividends declared by the corporation
- Tax legislation provides for dividend tax credit

Corporations earnings are its own for taxation purposes

27
Q

Duties and Responsibilities of Directors

A

Must have at least one director

Ownership is separate from management

Directors responsible for corporation’s operations

Managers of the day-to-day business

Rights to declare dividends

Balance needs of shareholder protection and freedom to manage in corporate best interests

Relationship between directors and corporations is fiduciary

28
Q

Fiduciary

A

relationship of utmost good faith in which a person, in dealing with property, must act in the best interests of the person for whom they act, rather than in their own best interests

29
Q

Directors

A

Must disclose his or her interest in particular contract or property

  • Refrain from discussing or voting
  • Accountable at law for breach of duty
30
Q

Director must:

A

Act in good faith at all times

Use care and skill in carrying out duties

Exercise powers and duties honestly with a view to the best interests of the corporation

Exercise powers with the care and skill of a reasonably careful and prudent person in similar circumstances

May profit if disclosure to, and with approval from, the Board.

31
Q

Director may not:

A

Engage in transaction with third party that might deprive corporation from opportunity to profit
- Doctrine of corporate opportunity

Be in a conflict of interest
Engage in any activity that might permit the director to profit at the corporation’s expense

Vote on such matters as a director but may vote as a shareholder

32
Q

Doctrine of corporate opportunity

A

use of corporation information for a personal benefit to the detriment of the corporation

33
Q
A
34
Q

Directors held personally liable for certain events that occur as a result of their actions

A

Imposed to encourage directors to comply with law

General rule - liable for any loss by the corporation if the directors commit the act when it is ultra vires

Perform acts contrary to the statutes
- Sell shares at discount or declare a dividend that impairs capital of corporation
- Store industrial waste improperly
- May be liable for unpaid taxes and employee wages

35
Q

Due diligence

A

obligation on the directors to ensure that effective systems are in place to comply with the law, and to monitor the systems to ensure compliance

36
Q

Defence for directors:

A

Does the action lead to absolute liability

OR

Can a defence of due diligence be raised?

37
Q

Outside director

A

director who is not an officer or employee of the corporation

  • Paid directors not involved in day to day management of corporation
  • Must inform self of corporation’s business
  • May rely on expert reports
38
Q

Director Defence Due Diligence

A

Directors must exercise the care, diligence, and skill that a reasonably prudent person would do in similar circumstances

Standard of care varies depending on the circumstances

39
Q

“Business judgement rule”

A

reluctance of the court to interfere with decisions of the board

  • Bad business decisions do not necessarily create director liability
  • Limited to cases where directors can show they informed themselves and exercised judgement
  • Judicial requirement of good faith and due diligence
40
Q

Sarbanes-Oxley Act

A

U.S. statute that imposes extensive duties on corporations to ensure accuracy of financial and securities information provided to the public

41
Q

Majority rule:

A

Shareholder meetings decide matters by a majority

Does not protect minority shareholders - only has limited rights when misuse of power by majority

Courts recognize expectations to “majority” rule:
- Act objected to is ultra vires
- Act personally affects rights of minority shareholders
- Corporation fails to comply with procedural rules
- Act constitutes a fraud on minority shareholder

42
Q

Common Law action against directors by shareholder is difficult because corporation is the body injured

A

Shareholder must take action for corporation (a derivative action)

Shareholder must satisfy courts that:
- Internal attempts to resolve matter have been exhausted
- Actions or decision of directors were improper, and caused injury to corporation
- Security for costs of action should claim fail

43
Q

Minority shareholders also protected in Canada Business Corporations Act

A

Shareholders may seek relief if directors or corporation act in a way that oppressed, unfairly, prejudices, or unfairly disregards their interests

A broad standard protecting reasonable expectations of shareholders

Court nay rectify matter under broad statute powers

44
Q

Events occur that limit existence of corporation:

A

Most common is inability of corporation to make a profit

Corporation is solvent and may wind up its business or if insolvent, may be involuntarily dissolved

Corporation ceases to exist when process complete

Procedure dictated by statute

45
Q

Purchase and Sale of a Corporation

Two methods:

A

Share sale - buyer buys the shares of corporation
- Take the good with the bad

Asset sale - buyer buys certain assets of the corporation
- Can buy the good and need not purchase the undesired

46
Q

Issues of sale/purchase

of corporation:

A

Tax implications for each type of sale

General rule: seller likes to sell shares and buyer likes to buy assets

A2610 (31 decks)

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